Must A Lawyer Be Abusive In His Professional Communication With His Colleagues Or The Court?!

By Hameed Ajibola Jimoh Esq.

There has been a trend in some senior lawyers in the legal profession, with due respect to them, who have in the guise of legal representation to their clients and legal prowess been found to be very abusive in their communications either with their colleagues or the court while acting in their professional capacities. There are at the moment many young lawyers who have imbibed this abusive status either in the open court or on social media platforms or in their written briefs to either their seniors or juniors or the courts before which they have appeared or are apearing! This paper is of the respectful view that it is unethical for lawyers to engage in abusive words or languages or communication in their professional communication with either their colleagues or the courts (including Magistrates Courts or Area Courts or Customary Courts, even the presiding Judge is viewed by the lawyer as a ‘young man or young lady!, with due respect) or the public as lawyers are meant to be gentle-men of the bar and courteous personalities!

I shall supply some relevant provisions of the Rules of Professional Conducts for Legal Practitioners, 2007-herein after referred to as the RPC- and some judicial precedents where the appellate courts have reprimand such abusive conducts of some lawyers in their professional capacities to buttress my respectful submission in the following paragraphs.

RELEVANT PROVISIONS OF THE RPC:

‘C. RELATION WITH OTHER LAWYERS

Fellowship and Precedence

26. (1) Lawyers shall treat one another with respect, fairness, consideration and dignity, and shall not allow any ill-feeling between opposing clients to influence their conduct and demeanor towards one another or towards the opposing clients.

(2) Lawyers shall observe among one another the rules of precedence as laid down by law, and subject to this, all lawyers are to be treated on the basis of equality of status.

Good faith and fairness among lawyers

27. (1) A lawyer shall observe good faith and fairness in dealing with, another lawyer.

RELATIONS WITH COURT

Lawyer as officer of court

30. A lawyer is an officer of the court and, accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely; affect the administration of justice.

Duty of lawyer to court and conduct in Court

31. (1) A lawyer shall always treat the Court with respect, dignity and honour

(2) Where the lawyer has a proper ground for complaint against a judicial officer, he shall make his complaint to the appropriate authorities.;

(3) A lawyer who fails to comply with any undertaken given by him either personally or on behalf of client to a court is prima face guilty of professional misconduct.

Candid and fair dealing

32. (1) In appearing in his professional capacity before a Court or Tribunal, a lawyer shall not deal with the Court otherwise than candidly and fairly. (2) In presenting a matter to the court, a lawyer shall disclose

(a) any legal authority in the jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by the opposing lawyer;

(b) the identities of the clients he represents and of the persons who employed him unless such disclosure is privileged or irrelevant.

(2) In appearing in his professional capacity before a court or tribunal, a lawyer shall not –

(a) state or allude to any matter which he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence;

(b) ask any question that he has no reasonable basis to believe is relevant to the matter and that is intended to degrade a witness or other person;

(c) assert his personal knowledge of the facts in issue except when testifying as a witness, or assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant or as to the guilt of innocence of an accused, but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein;

(d) fail to comply with known local customs of courtesy or practice of the Bar or of a particular Tribunal without giving to the opposing lawyer adequate notice of his intention not to comply;

(e) intentionally or habitually violate any established rule or procedure or of evidence;

(f) knowingly misquote the content of a paper, the testimony of a witness, the language of the argument of the opposing counsel, or the language of a decision or a textbook;

(g) with knowledge of its invalidity, cite as authority a decision that has been overruled, or a statute that has been repealed with intent to mislead the Court or Tribunal;

(h) in argument, assert as a fact that which has not been proved, or in those jurisdictions where a side has the opening and closing argument, to mislead his opponent by concealing or withholding in his opening argument positions upon which his side intends to rely;

(i) produce evidence which he knows the Court should reject;

(j) promote a case which to his knowledge is false; or

(k) in any other way do or perform any act which may obviously amount to an abuse of the process of the court, or which is dishonourable and unworthy of an officer of the law charged, as the lawyer, with the duty of aiding in the administration of justice.

Trial publicity

33. A lawyer or law firm engaged in or associated with the prosecution or defence of a criminal matter, or associated with a civil action shall not, while litigation is anticipated or pending in the matter, make or participate in making any extra-judicial statement that is calculated to prejudice or interfere with, or is reasonably capable of prejudicing or interfering with, the fair trial of the matter or the judgment or sentence thereon.

Relation with Judges

34. A lawyer shall not do anything or conduct himself in such a way, as to give the impression, or allow the impression to be created, that his act or conduct is calculated to gain, or has the appearance of gaining special personal consideration of favour from a Judge.

Lawyer and Tribunals

35. A lawyer appearing before a judicial tribunal shall accord due respect to it and shall treat the tribunal with courtesy and dignity.

Courtroom Decorum

36. When in the courtroom, a lawyer shall –

(a) be attired in a proper or dignified manner and shall not wear any apparel or ornament calculated to attract attention to himself.

(b) conduct himself with decency and decorum, and observe the customs, conduct and code of behaviour of the court and custom of practice at the bar with respect to appearances, dress, manners and courtesy;

(c) rise when addressing or being addressed by the Judge;

(d) address his objections, requests, arguments, and observations to the Judge and shall not engage in the exchange of banter, personality display, arguments or controversy with the opposing lawyer;

(e) not engage in undignified or discourteous conduct which is degrading to a court or tribunal; and

(f) not remain within the Bar or wear the lawyer’s robes when conducting a case in which he is a party or giving evidence.’.

RELEVANT JUDICIAL PRECEDENTS

‘Ayorinde v. Kuforiji (2007)- LPELR

Ayorinde v. Kuforiji (2007) 4 NWLR (Pt. 1024) 341 at 369 Paras. D – H, 373-374 Paras. F – C (CA)

ISSUE

BRIEF OF ARGUMENT : Need for counsel to refrain from castigating Judges in their briefs of argument.

PRINCIPLE

”Before considering this issue, let me at this stage comment on the language of learned counsel to the appellant on the learned trial Judge. He has stated in paragraph three of argument on issue D as follows: “The learned trial Judge apparently in haste to give judgment in favour of the respondent ignored or failed to take judicial notice of S. 49(e) 4th paragraph of the Adminstration of Estates Laws, Cap. 1, Laws of Ogun State, 1978 as enjoined by S. 74 of the Evidence Act, Cap. 112, Laws of the Federation.” I have searched through the length and breadth and I have not been able to discover the haste referred to above. A judge who started hearing this case on 20/1/98 (See P. 31 of the record) and concluded same on 15/6/99 (P. 117 of the record) could not be said to have been in a haste. That imputation of the counsel for the appellant on the learned trial Judge is, to say the least, very embarrassing. It has been said over and over again that an appeal court is not meant to be a forum for unjustly castigating and throwing mud on Judges of the lower court. In this case, the disparaging of the learned trial Judge, especially as he is not here to defend himself is hereby condemned. By now counsel should grow above insulting abusive or derogatory briefs.’ “I have nothing useful to add except to comment on the alarming rate at which counsel use abusive and insulting language in their briefs of arguments, and it must be deplored. Counsel should guard their tongues and pens in and out of court in their references to judgments of court, particularly as impolite remarks against judgments serve no useful purpose except to reduce the integrity of the court before litigants, and this does not augur well from the legal profession’ – See Akinduro v. Iwakun (1994) 3 NWLR (Pt.330) 106 & Udoh v. The State (1994) 2 NWLR (Pt.329) 666, where Tobi, JCA. (as he then was) observed as follows – “Counsel should try as much as it is humanly possible to refrain from castigating Judges in the guise or cloak of arguing the case of their clients. Raining aspersion on how a Judge conducted a case is not part of good advocacy.It is part of good advocacy for counsel to see Judges as parties in the same boat of administering justice and that both are indispensable parties in that boat. While counsel has all the freedom to present the case of his client with all his legal strength and expertise, they should on no account, use the forum to attack the Judge that he was either biased or know little or no law’. (italics mine).” Learned counsel’s jibe that the learned trial Judge was apparently in a haste to give judgment for the respondent and therefore ‘ignored or failed’ to take judicial notice of a law is not borne by the record and is therefore a sly attempt to accuse the lower court of bias or ignorance of the law. This is wrong and I add my voice in condemning same.” Per Augie JCA.

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2. EKE UMAZI NDUKWE V. THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE & ANOR (2007) LPELR-1978(SC)

BRIEF OF ARGUMENT : Contents of a brief and need for counsel to shun insulting language therein.

PRINCIPLE

“A brief, in accordance with its name, should and ought to be brief. Furthermore, counsel must avoid the use of insulting language in writing a brief of argument. See Mokwe v. Williams (1997) 11 NWLR (Pt. 328) 309 “.Summary of the decision of Ogbuagu, JSC.

3. LEARN AFRICA PLC v. OKO (2018) LPELR-45181(CA)

ISSUE

DUTY OF COUNSEL : Duty of Counsel to display a dignified and respectful attitude towards the Judge

PRINCIPLE

“The Appellant in addressing this issue one went into a long seductive argument, even castigating the learned trial Judge who did a thorough evaluation of the evidence and the claim of the Respondent and dismissed the first leg of the claim. In paragraph 4.1.2, the learned Counsel for the Appellant said: “In the portion of the judgment shown in the penultimate paragraph of page 145 of the record, the learned trial Judge came to the decision (expressed in clearly reluctant language, as if it were a personal loss to his Lordship…” (Underlining mine). I must say right away that it is never an acceptable practice for legal practitioners to use their brief of argument as a means of insulting Judges. That no doubt not only defeats the purpose of brief of argument but a denigration of the hallowed Rules of professional ethics which enjoin legal practitioners to at all times be courteous and show unalloyed respect to the Court. A legal practitioner is a minister in the temple of justice and as such must maintain the sanctity of the temple to build up the confidence of the public in our system of administration of justice. When a legal practitioner starts using his brief to run down judges, he is out to run down our judicial process and sabotage the due process of administration of justice. To say that the trial Judge gave a decision that was “clearly expressed in a reluctant language as if it was personal loss to his Lordship” is to say the least unfair and unfortunate. It must never be encouraged or tolerated.” Per ADAH, J.C.A. (Pp. 9-10, Paras. B-D)

4. NJEMANZE v. IGBOJEKWE & ORS (2018) LPELR-44411(CA)

ISSUE

DUTY OF COUNSEL: Duty of Counsel to present his case within the bounds of professional ethics

PRINCIPLE

“I cannot but start the consideration of the merit of the complaint of the 3rd Respondent/Appellant by observing that many uncomplimentary words or phrases and unfounded or unproven or unestablished allegations from which (what can be better described as most unreasonable inference or inferences in contradistinction to irresistible inference or inference) were made against the lower Court in both of the brief of argument and reply brief of the said 3rd Respondent/Appellant. Or how does one regard what is contained under “FACTS OF THE CASE” in the brief of argument of this party on page 3 thereof that reads thus: – “All the parties settled their pleadings. While the trial was going on, the trial Court showed bias and in deed (sic) was only out in giving judgment to the Plaintiff without fully hearing the case. It is important to point out that it was about the time this case was concluded that members of the Nigerian Bar Association Owerri branch boycotted the trial Court because of the Court’s apparent bias, inclination to one side, unethical conduct and shrewd rudeness. A typical examples (sic) of the judge’s unethical conduct was his disregard of pending application before the Court of Appeal for stay of proceedings where he himself was made a Party, abruptly closing the case of the Defendant when his last counsel Chief Enechi Onyia SAN withdraw (sic) from the suit and refusing to take evidence from the Third Party and 2nd Third Party in order to hastely (sic) give judgment, while the 2nd Third Party was physically present in Court. Despite excluding the Third Party and 2nd Third Party from giving evidence, the trial Court went ahead and awarded cost against them. This was a brazen breach of fair hearing enshrined under S. 33 (1) of the Constitution of the Federal Republic of Nigeria 1979.” See also where on the same page, the 3rd Respondent/Appellant said as follows: – “On the day the trial Court made the above finding/remarks/opinion, the 2nd Third Party was in Court and was prepared to proceed. The Court never called on him to proceed and he refused. Severally the 2nd Third Party/Respondent appeared in Court and was severally represented by counsel. It was dishonest for the trail (sic) Court to have opined that the Third Party and 2nd Third Party were not doing or saying anything when they filed their pleadings and severally came to Court and were represented by counsel. Again, from the above opinion of the trial Court, it is confirmed that it acted with prejudice from the onset and decided on what to do, even before hearing the case.” Also it beats me hands down how the 3rd Respondent/Appellant in arguing his issue 2 relating to wrongful award of costs on page 4 of his brief of argument can place reliance on the “alleged quarrel between Appellant’s father and the trial Court as a practicing lawyer” as deposed to in an affidavit in support of an application (see pages 344 – 346 for the affidavit) (but which he wrongly stated to be on page 343) particularly paragraphs 10 – 14 thereof. The 3rd Respondent’s/Appellant’s brief of argument was prepared by a lawyer and it would appear that learned counsel is unaware that an allegation of the breach of the 3rd Respondent’s/Appellant’s right to fair hearing in my considered view must be examined against the backdrop of the presumed correctness of the various acts undertaken by the lower Court in the case it entertained. See in this regard the case of MAGNA MARITIME SERVICES LTD (supra) wherein his lordship Edozie, JSC; stated thus:- “The expression “fair hearing” means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties in a case, and one of such rules is the rule of audi alteram partem. See Ariori v. Elemo (1983) 1 SC 13 at P 24; (1983) 1SCNLR 1 at 24, Rasaki A. Salu v. Madam Towero Egeibon (1994) 6 NWLR (Pt. 348) 23. Fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. It is synonymous with trial and implies that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the Court has been fair to all the parties: See Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 at 444; State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33 at 56. Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation it fails or neglects to attend the sitting of the Court or boycotts same, that party cannot thereafter be heard to complain about lack of fair hearing. In the case of Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 541, this Court observed, inter alia, as follows:- “I must also bear in mind the fact that the duty of Court under Section 33(1) of the Constitution is to give the person whose civil right or obligation is to be determined the opportunity of fair hearing. If he knew that the proceedings were going on and did not apply to be heard or the opportunity was made available to him and he failed to or neglected to take it, he cannot now properly complain of a denial of fair hearing. If he was aware that such a proceeding was going on, he could not properly fold his hands and fail to take steps to avail himself a hearing. It is when he has taken such steps and is rebuffed that he can complain of a denial.” See also the case of ISEZUO V. SANNI (2013) LPELR – 21974(CA). Also learned counsel who prepared the brief of argument of the 3rd Respondent/Appellant in my considered view would appear either to have deliberately or out of limited knowledge of the English Language (which is the official language of communication in this country and which Language is known for its classiness or elegance of words to better describe even the many unpalatable or unacceptable situations that he might have thought to have existed before the lower) chose to use very crude and insulting words or phrases in respect of same. I consider it worthwhile to remind learned counsel of the admonition as it were, of the Supreme Court in case of AKPAN V. BOB (supra) wherein his lordship Ibrahim Tanko Muhammad, JSC; said thus:- “Before I drop my pen on this issue, I think I should state in passing, that it is a matter of grave concern in the legal profession where a counsel launches attack and uncharitable remarks on the character and competence of the defenseless judges for conducting what their Oaths of office mandated them to do. All the justices did under the issue presented for their consideration in this matter was to treat the issues to the best of their understanding of the law and ability. No one is saying that a judge, as a human being, cannot make a mistake. If he does make a mistake the learned counsel who is engaged by a party knows that is the right thing to be done. The right thing is not by passing uncharitable remarks against the judge or judges. There are proper and legal avenues for a redress, such uncharitable and castigating remarks do not in my view, arise and counsel should not be seen to indulge or propel such unethical and irritating allegations. A judge has no business in whoever wins or loses a case brought to him as an umpire.” See also the case of UZOKWE V. UZOKWE (2016) LPELR – 40945 (CA) wherein the Justices of this Court had cause to dwell amongst others on “ethics of the legal profession” and in particular the pronouncement of Ogunwumiju, JCA; which I consider to be very incisive and which goes thus:- “However, I would be doing a disservice to the legal profession if I do not comment on the intemperate language used by the learned senior counsel Chief Mrs A. N. Muoma SAN, in the appellant’s brief, to attack the content and language of the trial judge. The learned senior counsel had the temerity to call the findings and orders of the trial judge “wicked”. It was an unnecessary and uncharitable attack on a judicial officer – to re-echo my learned brother. It is a breach of professional ethics to castigate judicial officers in the course of their duty. I have no problem with counsel’s critic of a judgment of the trial Court. After all that’s what ought to be done to expose the imperfection of such judgment to our scrutiny. However, it must be done in the courteous language of the legal profession. It must not be personalized. Counsel’s ability to represent a client creditably is not calculated by the quantity of vociferous attacks on the style, language and reasoning of the learned trial judge.” Per LOKULO-SODIPE, J.C.A. (Pp. 36-43, Paras. A-D).’.

Finally therefore, I humbly advise lawyers to be more courteous, respectful and gentle in making their arguments or submissions for and on behalf of their clients either in communicating with their colleagues (seniors or juniors) or with the courts (whether orally or in writing) even in the heat of hot emotions as more of these expectations are expected from a lawyer by the administration of justice, the legal profession and the society than they are required from a lay man of the society! Also, young lawyers should not imbibe unethical conducts from their seniors if they ever discover any of such because, such young lawyer is individually liable and or responsible for his unethical conducts if found wanting!

Email: hameed_ajibola@yahoo.com